New York Desperately Tries to Squirm Out of SCOTUS Case

This is TTAG’s weekly roundup of legal and legislative news affecting guns, the gun business and gun owners’ rights.

New York City’s Desperate Attempt to Kill the NYSRPA Case

Last January, the Supreme Court agreed to hearN.Y. State Rifle & Pistol Assn’ v. The City of New York (NYSRPA), a Second Amendment challenge to a city law that prohibited virtually anyone from taking a handgun outside the city. The case was set for the 2019 term, and would be the first Second Amendment case to be decided in a decade.

Almost as soon as the Supreme Court agreed to hear the case, the city pulled a 180 on a law it has defended tooth and nail for decades, and asked the Court to delay the case to give the city time to remove the rule. The city originally planned to have the police make a rule change–not even overturning the law–to try to moot the case.

The Court denied this request and, seeing clearly what the city was up to, several lawyers, including myself, made sure to address the city’s bad faith attempt to escape the threat to its gun control law.

A case is “moot” if it does not involve a “live” controversy. Imagine, for example, if your state banned speaking the word “caribou” in public. You sue the state on First Amendment grounds. Then, as your case is set to be heard by a federal court, the state repeals the law. The federal court no longer has constitutional authority to decide the case, as it is no longer “justiciable” as laid out in Article III of the Constitution.

There are, of course, some doctrines that prevent abuses of this system. But New York City has done its homework. The Court looks down on governments that voluntarily cease unconstitutional activity ahead of judicial review. The Supreme Court has said that, in these situations, it should be clear the defendant is not “free to return to his old ways” because there is “a public interest in having the legality of the practices settled.”

The city knew their half-hearted attempts to squirm out of the case wouldn’t free them form the “voluntary cessation” doctrine, so they had to do something more extreme. Enter New York Senator Brian P. Kavanagh. Kavanagh sponsored Assembly Bill A7752 in the state senate, preempting city laws on the transportation of firearms. The bill flew through the state legislature, and by July 3, was headed to the desk of Governor Cuomo.

If something seems odd about a Democrat state senator sponsoring a bill loosening restrictions on firearms, that law speeding through a Democrat-controlled legislature, and then being signed by a feverishly anti-gun governor, it might be because you have more than two brain cells to rub together.

A change in state law to preempt the city gun law, something the anti-gun crowd has consistentlyfoughtagainst, was the only way strengthen the city’s mootness argument. This sudden turn on a law the city supported ab initio, plus the sudden about-face of the state legislature, suggests nothing more or less than collusion to keep the Court from settling the matter.

With that, the attorney for New York City submitted a strongly worded letter to the Supreme Court, asserting they city’s opinion that, no matter what the Court or opposing counsel thought, the case was moot. The City dared the Court to proceed with the case, and and promised that if it does, the City will make the case as messy as possible for the conservative wing of its justices.

The city made it clear that it wouldn’t even respond to whether its law was constitutional, and would instead only argue that the case was moot. This isn’t the kind of behavior of a government that thinks what it’s doing is legal.

Continuing their notably litigious and aggressive gun rights advocacy, Firearms Policy Coalition, Firearms Policy Foundation, the Calguns Foundation, and Second Amendment Foundation sued the state of California this week for violating the rights of law abiding adults aged between 18-20. The suit targets multiple age discriminatory California laws.

You’ve heard it a million times. “If you can fight and die for your country….” Even without that emotional argument, stratifying the age of adulthood doesn’t make sense.

If we’re going to set an arbitrary age at which Americans are “adults,” we need to set it and have that be that. How can it be that you’re considered functional enough to sign a mortgage, join the military, or whatever else, but not to do other things? This isn’t to say anything about the average intelligence or responsibility of an 18-20 year old, but rather the lack of legal or philosophical basis for discriminating against them in such a way.

Virginia Gov. Ralph Northam (AP Photo/Steve Helber)

Virginia Governor Rolls Out Gun Control Wish List

On Wednesday, Governor Ralph “Coonman” Northam unveiled the final list of gun control measures he wants implemented in his state. In a move that should surprise precisely no one, he basically listed every gun control proposal you’ve ever heard of from across the country over the past year. Assault weapons, bump stocks, suppressors, “high capacity” magazines should all be verboten, according to him.

He didn’t stop there, adding red flag orders, an elimination on state preemption on local firearm laws, “universal” background check, and a “one handgun per month” policy.

The only novel thing was a safe storage provision, which Northam wants to come with felony punishment for anyone who leaves a firearm “accessible” to a 17-year old. Fascinating. What’s left to see is whether Northern Virginia (read: West DC) has enough sway in the state to pass any of these bills that the governor will sign.

I grew up, and lived in N.Y.C. for a number of years, departing permanently in 1967, you have one guess as to why, read legislative history. So, in answer to the question asked, Will the city learn, I would add the state too, the answer is not likely, unless they are slapped down by The Court. I would add that the “slapping” must be done with enough force that N.Y.C.’s and Albany’s ears will not stop ringing for several years, if ever.

They are indifferent to anyone else’s opinion, and attemtps to impose consequences take great, ongoing effort. They never “learn” that they might be wrong, but rather that you are having a problem accepting their rightness.

What will take them down, eventually, is the collapse of the patronage system. It’s internally impervious, but with the unbounded erosion of the host, the parasites eventually die. Out-migration. Decline of industry and employment. Competing “centers” of commerce, finance, culture, and so on (the claimed uniiuqe capabilities of NYC.) Money is interesting because it is fungible. If it’s fungible, it can go anywhere, taking the wrangling of it with it. In the NYC financial insitutions cannot be replaced, replicated, or substituted, why does Hong Kong exist?)

El Heffe decided beign in NYC was more bother than it was worth, and look …

No, not just “eff that”. This crap is like a disease. It migrates to other states because the residents inured to it migrate to other states and think that policy is ‘okay’. Sometimes you can’t just leave it. Sometimes you have to take the fight to them.

This is why we are going to win, we know how to fight to win. While you people sit around waiting for the supreme court to save your ass, we with satan as our leader, make you look like fools. The supreme court, because they believe in the rule of law, like you fools do, will drop the case and you white folk will have to turn your guns in soon. We care not about rules or laws that we do not like. They are only there for us, because you fools will follow them right into the rehabilitation camps that are soon coming. But, but, the law says we have to go there. And yes you will, welcome to your new home. Soon we will have enough new brown voters that will overwhelm you at the pols, and you will quietly obey, because we will be the law.

Get back to practicing shooting those kneeling victims in the back of the head, Vlad. Your aim needs work if you’re still hitting your own foot.

So comical, to think that but a few weeks ago you were pretending to be a ‘reasonable gun owner.’ You’ve failed utterly, and only convinced people that ‘reasonable gun owner’ types are not to be trusted. You’re trying to undo that damage by over-exaggerating the very real disgusting aspects of you socialists, and making it appear like you don’t seriously support the ideas o tyranny & mass-murder…but that isn’t working, either. Time to shed your skin & transition to another name, snek.

to pwrserge
“”””””””””””””””””””””””The Marines are going to enjoy putting down your little insurrection.“”””””””””””””””””””””””

We Socialists grow more numerous and more powerful with each passing year and we of course are well aware of the fact that “History is on our side not yours”. We gain THOUSANDS OF NEW VOTERS EVERYDAY and will soon overwhelm the country. With their new votes, because they can vote immediately as soon as they get here, we will take the government. Your Marines were taught to follow orders, they will now follow our orders.

Your Failure to do anything will eventually result in our control of just about everything.

Vlad! I thought you went to shit and the hogs ate you. Guess I was half right. Guys, ignore him. Even though I just briefly responded to him by not responding he becomes irrelevant. Oh, one last jab, Vlad, (poet and don’t know it.) I ain’t turning in a single thing. And I’m not scared of government agents. After all, I was one for over 20 years.

You understand as a government agent for 20 years what I wrote is either here or will be, and what is coming soon in the dark of the night.You admitted it when you said you were not turning in your guns when we take control because we will soon outnumber and out vote you. You understand how many other agents will then do as they are told, so they do not lose their government pensions, because we will be the government. America has been a tougher nut to crack versus other countries, and Trump has only slowed our progress, but white America we are coming.

I know I said no one should reply to you, but you invite it. I don’t know if that’s the stupidest shit I ever heard, or the funniest. Nearly everyone I served and worked with said they would never turn on United States citizens. I mean the military and federal, state and local L.E.O. I swore to defend the Constitution against all enemies. Foreign and domestic. Twice. Meant it both times. Have you ever taken that oath? I suppose not. You’re only a troll.

And the smoke of their torment goes up forever and ever, and they have no rest, day or night, these worshipers of the beast and its image, and whoever receives the mark of its name.” (Revelations 14:11)

“””””””””””””””””””””””””””Wait. You’re Saul Alinsky, right?”””””””””””””””” You missed the most important point as Saul Alinsky once said “Make the enemy live up to its own book of rules.” because no one can possibly obey all of their own rules and has historically become quite accurate. That is what we do to you ignorant Red Neck Hillbillies. We make you live up to your own rules, when we take the government for ourselves. We pull the rug out from under you and you obey with nary a wimper, BECAUSE IT’S THE LAW.

He was a great man to socialists, like our leader satan, who is the center of any socialist revolution against you ignorant hillbillies. You will not admit like the rest of the civilized industrial world that health care is a human right and not reserved only for the upper 1 per cent. These social programs the entire rest of the Industrialized world has been enjoying for decades.

Only by educating the younger generations in satan can we ever hope to overthrow the present Representative and thoroughly corrupt Government that was founded for the filthy rich and by the filthy rich and was designed to make the people think they have a democratic system which they do not and never have had.

I bet he writes Comic book scripts for The CW TV Shows, some great entertainment read in this thread. New Comic book caricature out a Stan Lee Invention, Vlad the bloodsucker speaks for DNC and Tom Perez Lucifer worshippers.and his lord is Obama.

Go back and read all of Vlad’s comments. I don’t think he is “what” he claims to be, I think he is one of “us”, but making “true” statements to antagonize. No leftist in their right mind would acknowledge the things that he is acknowledging, and most leftists don’t even know what is true. I think Vlad is playing everyone, and you’re taking it hook, line, and sinker!

I have posted enough comments on this forum to establish that I am most certainly NOT pro-Socialism and most certainly NOT pro-Satanism. I have also posted enough comments to concretely establish that I AM pro-truth.

Unfortunately, there appears to be a lot of truth in what Vlad is saying. Please do not dismiss someone’s statements as hogwash simply because you do not like what they are saying. If someone’s statements are demonstrably untrue, by all means excoriate him or her.

The truth of the matter is this:
(1) People who embrace socialism are immigrating/reproducing much faster than people who embrace conservative values (liberty, responsibility, limited government, etc.)
(2) The overwhelming majority of people who work for government blindly do whatever government tells them to do, no matter how obviously unjust. (I have seen this first hand on multiple occasions.)
(3) The overwhelming majority of people blindly support government laws, even when they do not like those laws. Sure, many people will quietly violate laws that they do not support when no one will ever know. If violating those laws requires losing a LOT of money or freedom, the overwhelming majority will comply.

I saw the same thing. I think that Vlad is one of “us”, and just laying a part it antagonize and to be sarcastic. Many of the things he is saying would never be admitted by a leftist, even if they knew it was true.

And what the poster said has always been the leftist endgame for the USA. The fact that they are more and more open about what they are shows one of two things: Either they think they are close to that endgame, or they see it slipping and they are getting desperate. I still have some hope that leftism in the USA saw it’s high water mark with Obama, but we’ll see.

The satanism stuff, though, most leftists don’t think like that. That’s what religious/social conservatives think about them, not how they think about themselves. That’s the mark of the troll to me.

Did you think this fantasy up yourself our have help from another idiot as stupid as you. You better pray there is never a civil war over this or you may find your, the coward you are, running up a tree to save your sick ass.

Actually liberalism is going lose. Europe is a perfect example. You liberals love to use Europe as your perfect liberal example, so, let’s do so. European liberalism is slowly being crushed under a wave of “right wing nationalism.” In every European country, eurosceptic and right wing parties are on the rise. This is the natural progression of leftism. Eventually people reach a breaking point with their oppressive leftist overlords and rebel. Russia is another example. Communism for nearly a century, all erased in a matter of *days*. Now Russia is a “right wing nationalist” whatever. You’re going to lose. Beware the long branch, it snaps back.

I thought all the old communist party bosses just became owners of the resources they previously pretended to manage on behalf of the people, that it was always basically a kleptocracy, but that they are more open about it now.

Humm… Vlady, not every “brown” voter believes in your tripe. And turn in my guns? Not bloody likely. Twenty years of living in a totalitarian government taught me that wannabe tyrants like yourself only fear one thing, and that is a gun in the hands of someone who is willing to give up everything to keep you from procreating. You could always try though, this is the land of opportunity of course.

To Miner49er, I never understood why some people always accuse gun owners of being cowards. Are they suppose to settle their differences with fisticuffs? Perhaps is some hollywood movie, the steely-eyed hero may prevail over his assailants with bare hands, but in the real world I’ll stick to modern force multipliers.

It’s about organization. If there’s an uprising against leftism (not saying there will be, and not saying leftism won’t be defeated at the ballot box; that’s still possible), it will need to have some organization to build around. Like a block of states.

You guys are getting WAAYY too worked up over Vlad here. I genuinely thought for a while he was one of those actual “reasonable gun owners”. The last couple posts make it clear he isn’t actually serious. He knows what will get a rise out of you guys and is just fucking with you. Probably just an anti with some spare time on his hands.

Time for a new screenname Vlad, you’ve worn this one out. Happy trolling. Try throwing in some abortion and anti-vaxxing stuff too. It gets a pretty good response around here. You can ask Pg2 about the vaxxing, he’s pretty on point about that stuff. Manages to take a scope review and make some anti-vaxxing connection to it. It’s kind of impressive really.

You’re my favorite type of gun owner, the “it will never happen here” type. You sit on your arrogance, cocksure that we are just a joke. Ignoring us all around you, because we aren’t actually serious. That no matter what we say or do we are actually only like you “reasonable gun owners”. That we are, carry on, nothing to see here.

Your type existed during the holocaust as well, snookering his buddies, telling them it’s only a shower.

Oh. I think I get it.
Ol’ Drac here is acting as an opposing voice on here, so as to challenge our points.
I think he’s finally cracking under the lunacy of the opposite sides insanity, and is finally at the point of actually raving.
Vlad, you can stop for a weekend, that can’t be healthy.

I mean, that’s technically still a win; an old & oppressive gun law is off the books –that’s what we wanted, right? It’s nice to dream of a sweeping win that undoes all the bad stuff we’ve endured, but we should know by now that SCOTUS simply isn’t interested. Still hard to believe DOJ basically supports the state’s position; unbelievable.

Yes, it is a win in that sense, but no, it is a loss because the Court may not have an opportunity to set the standard of review in 2A cases, and to, in a strongly worded decision, tell the 2A to stop giving nothing but lip service to Heller and McDonald. The Second Circuit decision was so convoluted and ridiculous that a real beat down is in order, as the court (and a few others) has yet to see a gun control law that does not pass what they call “intermediate scrutiny.” A win will be a decision setting rules that the Supreme Court expects the lower courts to follow to the letter.

A few things Ralph, the Supreme Court allowed delay after delay on this case. The court system is so slow, ponderous, and outdated that it can no longer keep up with the rapidly changing society. The Courts behave as if the average life span is 500 years… justice delayed is justice denied…anyone?

This however, isn’t the real problem, which is the “right” is weak and feckless in defending rights.

Any ruling that is “conservative” is either so narrowly written, or filled with so many caveats that it takes lifetimes to finally arrive at the proper decision.

Any ruling that is “leftist” is all encompassing and immediate, gay marriage, Roe v. Wade, and nation wide injunctions on the border wall.

The right steps into the ring wearing 28oz gloves, the bare-knuckle left steps into the cage and says “gloves, we don’t use no stink’in gloves”.

“Plague”? Please…cite the source of your statement. You know…those pesky things known as “facts”? Oh yeah, that’s right…what you claim isn’t actually a thing. Although I do agree with one part of your statement. “Perhaps” it’s a good time to roll back the myriad of unconstitutional gun laws infinging on a basic human right…

If you mean getting rid of 90% of existing restrictions on firearms and repurposing the budget of the defunct ATF toward better mental health care, then yes, it’s FAR past time those actual changes occurred.

I am with you on changing the firearm laws, thank you, it’s about time! Pick either 18 or 21, anyone past that age should be required to carry a loaded gun every moment of every day, and should be liable for treble damages if he fails to stop a criminal act. How’s that for a start?

While paying due respect to those very infrequent tragedies, we don’t have a school shooting problem in this country. Most gun deaths are suicides, and most of the remaining that aren’t suicide are gang violence.

We a mental health and drug problem.

There is a group I belong to called Walk the Talk America that is working on the mental health issue from our end; a group of gun owners, competitors, and others in the industry. I’d urge all of you to look in to it.

If NYS really cared maybe they should pass a full preemption statute that placed NYC under all the same gun laws as the rest of the state… which, of course, would mean that some random Joe from Buffalo with a carry permit could stroll down Time Square with a (concealed) firearm and be fully legal. Wouldn’t that be a gas.

That very question intrigues me, as NYC has held on so long to its state guaranteed freedom from state law pre-emption. Apart from demonstrating the desperation of the anti-gunners to avoid meaningful review and a new standard of review in such cases, it kind of opens the door to further erosion of NYC’s “rights” to write its own laws on guns…which would NEVER do!

That raises an interesting question: if the state passes a preemption law for this particular gun law, why would NYC home rule not negate it like it does many other gun laws? Is it just because NYC decides not to? And if that is the case we find ourselves in the very situation of “voluntary cessation” where NYC could assert it’s home rule privilege after the case is dismissed for mootness. Alternatively, the third party state legislature could simply repeal its own law.

Yes, I’m sure Joe will be saying the same thing from his prison cell at Rikers Island as he tries to figure out how his family is going to get by after a gumshoe with a good eye spotted him printing and busted him.

Go out and lead the revolution. Until then, big words on the internet aren’t worth much.

The state legislature just pased a package of laws having the state impoce NYC’s housing and rent regulatinon laws across the rest of the state.

The exact wording is deep withing a cloud of chaff.

The talking poitns, from legislators, the administration Governor Soprano, various down-state progressive, and their captive propagandists, all include *extending NYC rent and housing controls to the rest of the state.* So, not only taking that away from the localities, but explicitly stating that the pont of these laws is to enable NYC to impose policies on the rest of the state.

“If something seems odd about a Democrat state senator sponsoring a bill loosening restrictions on firearms, that law speeding through a Democrat-controlled legislature, and then being signed by a feverishly anti-gun governor, it might be because you have more than two brain cells to rub together.”

And of course, if you think that New York City and the New York State legislature would not immediately repeal everything they have done to moot the case, then you probably don’t have those two brain cells to rub together.

Is that more or less stupid than telling people that Reciprocity would budge the needle one iota in these places, even if it had miraculously passed into law? It’s pretty obvious that NY intends to do as they wish regardless of what some external authority requires. Gun rights really does seem to mirror the closing days of the Civil Rights era more & more every day; a show of federal force will ultimately be required to crack these people, just like was needed in Little Rock. But we’ll require a president that is willing to go to bat for us in order for that to happen.

Does SCOTUS have any recourse that could dissuade these sorts of shenanigans? Seems like a great exploit that can be leveraged by local or state governments to target (or simply troll) specific political or economic interests.

If NYC turned around & re-instituted the laws right after repealing them in order to moot the case, you could probably file a contempt of court suit & win pretty easily (and probably with a violation of civil rights under color of law rider along with it). In the end, it’s really a stalling tactic, to drag things on long enough that SCOTUS swings liberal(er) again and drops the paltry amount of pressure they’re putting on NY today.

Yes, the purpose is to prevent a conservative majority from setting a bar on review of these cases much higher than that set by the liberal circuits. That is why the court of appeal decision that now allows shall issue carry was not appealed, because they fear a decision by the Supremes that would be binding on the whole country. In the 2d, 3d, 4th and 9th circuits, “intermediate review” is merely “rational basis” (the lowest level of court review) dressed up in pretty words. And they for sure do not want that to change, as it would open the flood gates to overturning a multiplicity of laws on the books.

The recourse has been and always will be the people. Expecting votes or court decisions to carry the water will never cut it for long. Thomas Jefferson and others were quite vocal about that fact. If the people lose the spirit of rebellion then liberty is lost.

Have the American people lost the stomach for liberty? That remains to be seen but the clock is running down rapidly.

I have not lost my will to fight for liberty. It seems that most of us on this blog are ready to prevail. There is something insidious going on. Look at those nations that have embraced the ‘nanny state’ (Germany and Great Britain, for example). They no longer have freedom of speach. You can be fined, arrested, and jailed for expressing opinions the state does not like. The big push for socialism, here in the USA, is an attempt to make us all so dependent upon the state that we cannot resist. They know they will not be able to take our guns anytime soon. Instead, they will use socialism to get control of our health (mandated healthcare), our incomes (through the taxation needed to fund social programs), and our ability to communicate freely (censorship, social credit scores). Once socialism is firmly established, they will have the control needed to take our guns or, kill us as we resist.

The solution is to not yield an inch on the Bill of Rights. That is the line we must never allow them to cross, no matter how much ‘free’ stuff they promise.

Currently, there are three standards of review employed by the Supreme Court for various issues, rational basis, intermediate scrutiny, and strict scrutiny. Under rational basis, if there is any rational basis supporting the governmental action, the law is upheld. Under intermediate scrutiny (as it is supposed to be applied) in circumstances where individual constitutional rights are implicated, there must be a “close fit” between the governmental restriction and the conduct sought to be curtailed, so that the law does not unnecessarily impede other rights. Under strict scrutiny…well, under strict scrutiny, governmental restrictions on guaranteed rights are presumed invalid for most purposes. What has been happening is that the liberal circuits have been applying what they call “intermediate scrutiny” to all of these gun control laws, but their “sliding scale” analysis (rejected by the “Heller majority) amounts in almost all cases in upholding the restriction, even in cases where the government has made no factual showing at all as to the rational for the law or the closeness of the fit to the harm sought to be avoided. In other words, these courts have been applying rational basis review. The ban states are trying to assure that these decisions are not reviewed by a pro-gun conservative majority, as the Supreme Court decision would li8kely set a much stricter standard of review that these lower courts have been applying. If that happens, many gun laws will fail constitutional review. What looms largest is a review of laws limiting the right “to bear” arms, of particular import to states, such as NY, Mass, California and others, that make it difficult if not impossible to obtain a carry permit. California for example bans open carry, and in the large urban areas it is next toi impossible to get a CCW. All that could change, with the court ultimately concluding that “shall issue” is the law of the land in some form, either concealed or open carry.

A literalist, constructionist or originalist perspective would reject these shenanigans just as well: perhaps better. A limited-government perspective would as well.

Concretely “intermediate scrutiny” & the rest trace back to different philosophies of government and law. If the US constitution is a limiteg charter of govt authorities and responsibilities, you end up with one kind of scrutiny. Requiring a good reason and som evidence of impact for laws makes it that much harder to throw patronage around. Or indulge the govt-admin people to play real-life sims with, well, with us.

Gorshch confuses many of the chattering class as a “swing” between “conservative n liberal.” BUT, they’re looking at the bundle of policies politically associated with the fake “two wings” of left and right. He’s generally pretty consistent in asking: “Whoa, where’s your authoritah, bro?” Contra the “liberal” wing, who are consistent in their portfolio of preferred policies, and their “more government, better” POV.

I, myself, am so old I remember whent there were more civil libertarians on the “left” side than the now lonely Alan Dershowitz, but I suppopse things change…

“All that could change, with the court ultimately concluding that “shall issue” is the law of the land in some form, either concealed or open carry.”

What I would *love* to see is a ruling requiring ‘shall issue’, but leaving it up to the states whether carry will be open, concealed, or both.

In my gun fantasy, I want to see California putting up an election referendum on mode of carry before the voters. Just *imagine* the pearl-clutching, teeth-clenching, wailing and crying that would ensue –

It has to be one or the other, do they choose the ostrich ‘head-in-the-sand’ of not wanting to know, AKA – the ‘out-of-sight, out-of-mind’ of concealed carry, or do they choose ‘the right of the people to know who is carrying a gun’ of open carry’?

Good Lord, the editorials in the ‘LA Times’ arguing for and against each choice would be fucking *priceless*… 😉

If given a choice, California will more likely go open carry, notwithstanding that open loaded was banned in 1968 and open unloaded in 2013 (the latter because gunz scare the soccer moms who all call 911). Several reasons. One, most people would rather not openly carry a firearm–at least in California. Second is the Gun Free School Zone Act (both state and federal) which bars carry within 1000’of a school premises without a concealed firearms permit. The practical effect of the GFSZA is to ban open carry in most if not practically all urban areas in the state, because the overlapping school exclusion zones leave almost nowhere where open carry is legal. Third, the Democrats and their city police chiefs (as well as a minority of sheriffs) are convinced that “more guns means more gun crime.” (It’s not true, but nonetheless they firmly believe it.) So any law that discourages carrying of firearms will be the way it goes. And who knows, if forced to allow open carry (the Ninth Circuit has already concluded that their is no 2A right to concealed carry), the Legislature would undoubtedly re-enact open unloaded carry and force another 10 year fight to require the state to allow open loaded.

Polite correction: the federal Gun-Free School Zones Act does not prohibit open carry. Rather, it prohibits carrying firearms within 1000 feet of a school unless you have a carry license from your state.

If you are right and I am wrong, please provide the wording of the Gun-Free School Zones Act that only excuses licensed CONCEALED carry.

In short, many of us are hoping that the SCOTUS uses the case to declare that STRICT SCRUTINY needs to be applied by lower courts when a valid 2nd Amendment lawsuit is entered. I can’t think of a single Malum Prohibitum Law (prohibited because the government says so – a victimless law), for example “magazine capacity limits”, “AR-15/AK-47 bans”, etc would stand under strict scrutiny.

As the case stands now, how is it that this particular case is going to be forced to be held to strict scrutiny, vs how it’s being done now? Granted, I’m in favor of all abolishment of almost all laws (guns, speed limits, drugs, etc), so I’m trying to understand how the court saying that the NYC travel prohibition is not valid, makes the rest of the country follow suit.

When a SCOTUS decision is rendered that says: “Laws that infringe on enumerated rights must meet the strict scrutiny standard which this one does not. The lower court is overturned.”

Really, all the “ban all the things” that fail tests of evidence only remain because they are not subject to “strict scrutiny.” You can throw all the stats, logic, and results at them you want. Until the folks who like “No guns for you!” are required to respond to evidence, they’ll just “Neener, neener, neener, we have the votes.” as they have been.

As it is, even intermediate scrutiny would be an improvement for gun laws.

New York City claims that allowing people with handgun licenses to transport their firearms outside of New York City will increase the number of firearms “on the streets” (even if those “streets” are in other cities in New York state and surrounding states) and therefore increase violent crime. And New York City implicitly claims that their law therefore reduces violent crime which is a “compelling government interest” — allegedly worthy of negating unalienable rights.

New York City offers no evidence that their claims (both explicit and implicit) are true. Instead, New York City simply touts that their claim is common sense, in other words a “rational conclusion”. And the federal Second Circuit Court of Appeals upheld that rationale as “intermediate scrutiny” (which it is not).

The plaintiffs in this case are asking the U.S. Supreme Court to overturn this case because there is no evidence which supports the alleged intent of the law and because the law totally destroys the right of the plaintiffs to keep and bear an entire class of arms (handguns) outside of the city.

I believe the U.S. Supreme Court agreed to hear the case for two reasons:
(1) The New York City law indeed totally destroys the right to keep and bear and entire class of arms (handguns) outside the city. (This totally conflicts with the U.S. Supreme Court’s recent Heller and MacDonald rulings.)
(2) Various other state and federal courts are upholding firearm laws which effectively destroy the right to keep and bear arms — justifying their decisions strictly on emotional appeals dressed in “common sense” wording touted as intermediate scrutiny.

Because various lower courts are abusing “rational basis” and “intermediate scrutiny” standards to allow firearm laws which totally destroy our unalienable right to keep and bear arms, many of us hope/believe that the U.S. Supreme Court will use this case to establish that all courts must use “strict scrutiny” on all cases involving firearm laws. This would be good for us because courts would no longer be able to uphold a law unless a law was extremely narrowly focused and there was compelling evidence that the benefits of that law would far outweigh the loss of the right in general.

Allow me to provide an example of what New York City could do that would meet strict scrutiny. Suppose there is clear and compelling evidence that many/most licensed handgun owners who transport their handguns to flea markets outside of New York City give their handguns to felons convicted of violent crimes who then use those handguns to commit more violent crimes. And there is additional evidence that a law which forbids licensed handgun owners from transporting handguns to flea markets outside of their city reduces violent crime. In that scenario a New York City law which prohibits licensed handgun owners from transporting their handguns out of the city to flea markets would probably satisfy strict scrutiny. Why? Because that law would be narrowly tailored for a specific compelling government interest, it is based on actual evidence, and it would not totally destroy the right to keep and bear an entire class of arms.

I’M SICK OF TREASONOUS HIPORCRITE OBSTRUCTING THIEVING CORRUPT COMMUNISUM PROMOTING POLITICAN’S NOT GETTING PROSECUTED FOR TREASON AGAINST THE CITIZEN GOVERNMENT OF THIS NATION AND THE SITTING PRESIDENT DONALD JOHN TRUMP!!🤨🤔🙄😏👎👎👎👎👎👎

For those in Virginia, the General Assembly will be in session next Tuesday, July 9th. The Virginia Citizens Defense League (VCDL), NRA-ILA, American Suppressor Association at a minimum will be there. Open Carry within the General Assembly is legal; Conceal Carry is legal assuming you have your state issued permission card.

VCDL (at least) is organizing groups that will be ushered into committee hearings on these bills – anyone is allowed to speak. More information on VCDL’s website (https://www.vcdl.org/rally). Gov. Northam (aka Gov. Blackface) had large donations from Bloomburg that certainly helped win his election.

“The federal court no longer has constitutional authority to decide the case, as it is no longer “justiciable” as laid out in Article III of the Constitution.”

The Supreme Court did not then, nor does it now, have explicit constitutional authority for Judicial Review. That is created doctrine… even government freely admits this fact. Judicial Review is not a power explicitly delegated to the Court. Every privilege created by government for itself is power usurped in spite of the Constitution.

The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803). ‘

“The city made it clear that it wouldn’t even respond to whether its law was constitutional, and would instead only argue that the case was moot. This isn’t the kind of behavior of a government that thinks what it’s doing is legal.”

This is the most common argument of attorneys and judges when one brings up the unconstitutionality of Judicial Review; that it is now rendered moot. It matters not to them that Judicial Review breaks the constraints of the Constitution and set in motion wholesale violation of the founding document. There could be very little effect from activist judges if the Constitution were actually adhered to in matters of Judicial Review. The Constitution never explicitly granted the power for good reason.

“It matters not to them that Judicial Review breaks the constraints of the Constitution…”

The more interesting element in discussing M v. M (1803) is that, like so often today, Congress abdicated its responsibility and authority by not instantly passing legislation that prohibited such review by the SC. Yes, SC overstepped (most likely for political retaliation), yet Congress kept its tail between its legs.

The founders were convinced the branches of government would jealously and vigorously defend their turf at every turn. There was even conflict over the danger of judicial rule, yet the Constitution did not address such sufficiently. Neither did the still living framers of the Constitution take action to stop judicial expansion instigated solely by the SC.

It’s almost as if the founders realized that there needed to be a final check on the power of the Congress to stay within the Constitution because otherwise they wouldn’t.

And as much as people complain about the Supreme Court not doing enough for the 2nd Amendment, how is it a good idea to say they can’t do ANYTHING? Marbury v. Madison is the only thing preventing the US from turning into Europe on guns.

Oh, I know, the idea is that natural rights would somehow create an army of patriots to take back the republic from those dirty commies and water the tree of liberty. Except no, a dozen middle-aged white dudes would meet and immediately get infiltrated and rounded up while everyone under the age of 30 is too busy with the Kardashians and snapchat.

“And as much as people complain about the Supreme Court not doing enough for the 2nd Amendment, how is it a good idea to say they can’t do ANYTHING? Marbury v. Madison is the only thing preventing the US from turning into Europe on guns.”

Some only seem to agree with constitutional constraints when it gets them where they want to go.

The truth doesn’t seem to be sitting well with you tonight. That’s not typical of your posts.

“Oh, I know, the idea is that natural rights would somehow create an army of patriots to take back the republic from those dirty commies and water the tree of liberty. Except no, a dozen middle-aged white dudes would meet and immediately get infiltrated and rounded up while everyone under the age of 30 is too busy with the Kardashians and snapchat.”

While there is some truth to your comment, I have one question to ask of you…

Do you support gun control or do you support the unalienable individual right to keep and bear arms (shall not be infringed)? Simple question asked, simple answer desired.

If a Democrat state senator drafted and got a preemption law passed in New York and the SCOTUS renders the question moot, what’s to keep another NY state senator (or indeed, the same senator) from submitting another bill which completely nullified the provisions of the original bill? The entire lengthy and onerous process of challenging the law through the federal system would have to start all over again, would it not? Much better to have the SCOTUS make a definitive ruling which would put a stop to the state’s unconstitutional chicanery once and for all.

I think it’s pretty much a sure bet that if SCOTUS decides to moot the case that “preemption” law would be repealed the same week.
The only question is, is SCOTUS going to be gullible enough to fall for it?
Gotta be honest, I’m kinda worried they might be. The liberal justices will take any excuse to make this case go away. And the conservatives are too caught up in some nebulous concept of “rule of law” that states like NY can just change laws on a whim to run circles around them.

I feel sorry for all the normal people who don’t reside in NYC that are subjected to the democratic tyranny imposed on them by the hordes of idiots who live in the city. I don’t know how to combat the problem. Maybe one of the readers on this site has suggestions.

“Thank you for the in-depth explanation. I really do appreciate that. If you see my comment response to the one below, the same question goes if you’re willing.”

Regardless of the hopes of strict constitutionalists, the SC is loathe to address the constitutionality of a legal conflict. Rather, SC prefers to look only at process and procedures regarding how government produced a condition that resulted in a case reaching the SC for review; process over substance.

In the case in hand, many hope the SC will rule that only “strict review” can be applied when addressing constitutional conflict, and that somehow such imposition alone will overturn all long standing restrictions of firearm ownership. The theory seems to further promise that once “strict scrutiny” is demanded, gun control laws will fall instantly, without further court action.

What will likely happen is that the SC will rule that a process established by the SC (levels of judicial review) must be applied henceforth, but not address the actual constitutional question: gun control laws at large. If one looks closely, it is obvious that the SC would remand the case for application of strict scrutiny, allowing the restricting agent to fabricate yet another reasoning (this time surviving strict scrutiny) for the law at the bar. What this does is provide yet another “bite at the apple” for government. In short, if a restriction can survive strict scrutiny (as to how much burden government can impose), the issue of “shall not be infringed” is avoided entirely.

NYS out-migration is dominantely from up state: leans red pretty hard. Take a look at the county “Nope to the SAFE act” map. Up state is potentially several kinds of vibrant, if the overlords ever take their boots off our necks. Meanwhile, down-state’s situation is more precarious than they realize.

It’s hard to call exactly when, or exactly what path it’ll take, but as currently arranged, NYS internal arrangements are unstable. Interesting to me, therd’s a bit of a sub-segment of non-computing high tech in Rochester, now. They couldn’t figure out how to do a business that worked on its own. But there’s a lot of back office engineering, engineering services, even production, that build up or spun out, then got bought by grown ups somewhere else. Yes, salaries and personal taxes stay in state. Corporate HQ personnel, corporate spending, and corporate taxes do not. I can name a dozen of so off the top of my head…

Even with — what was it $3 billion? — all that relief and subsidy on the table, it wasn’t worth it for Amazon to deal with the shenanigans. Even with a 9.7 to 1 payoff — their numbers — NYS and NYC couldn’t stop themselves from bgeing such jerks they drove it away. Even with projected payoffs in the neighborhood of 10:1 from rax and regulatory relief, NYC and NYS couldn’t being themselves to ask: “Why don’t we offer the same thing to everyone else; everywhere else, and get the same 10:1 payoff?”

The problem with dialing back patronage (In the form of relief from impossible regulations.) is, if people can make it without your patronage, why do they need you? You gotta burn down everyone who doesn’t pay protection, pour encourage les autres.

“Esso petrol stations used to be common downunder but I don’t think I’ve seen one in almost 30 years.”

ESSO (S-O; Standard Oil) became Exxon here in the states, about 30 years ago. A whole bunch of former Standard Oil spin-offs were gulped into Exxon, almost re-creating the old Standard Oil of trust busting fame.

We’re in for a fight in Virginia, but hopefully we can stop Northam in his tracks – Republicans hold (small) majorities in both legislative chambers.

The Virginia Citizens Defense League is leading the fight against Northam’s gun grab, and anyone from Virginia who isn’t a member should join. Even if you aren’t from Virginia, but don’t want to see the Second Amendment violated anywhere, VCDL could use your donations.

As usual, the NRA, who have their headquarters in Virginia, are nowhere to be seen.

Florida, Colorado, Texas, Nevada seem to tell the story of the parasites in flight. Without Florida and Texas, game over. In Texas, the political map indicates every county on the border with Mexico is Blue, and all the major cities are Blue. Even in Texas, the urban clusters control the most votes. Florida is simply gagging for air these days, despite the governor. Virginia isn’t on the bubble because upstate New Yorkers moved in and turned the state Blurple.

I’ve always thought right from the get-go that the NYC case was kind of odd duck for the SCOTUS to pick up. Clearly the law is unconstitutional (what gun-grabber law isn’t?), but the circumstances of it are unique to NYC. I can’t think of any other place that has such a law.

So, why, I sez to myself, does SC pick this one, where a ruling is going to affect the least number of people? Why not pick something broader, like a challenge to “may-issue” permitting, assualt weapon bans, magazine bans, ad nauseum. Certainly there is no shortage of other challenges already in the courts, and if strict scrutiny is the goal, well, that’s something that can be applied to any judicial review.

It almost looks like SCOTUS set itself up to be hoodwinked by New York. I just don’t get it.

It is a case where all of the justices likely will agree–albeit for different reasons–that the law is not valid. And this makes it easy to put together a majority opinion without hedging or compromising to get the critical fifth vote.

My best guess is that it’s a signal of things to come. They’re starting out slowly, picking a law that is clearly indefensible. But I think it means “we won’t be refusing to hear Second Amendment cases anymore”.

Now, some people think that the main thrust of the ruling will be that 2A cases must be looked at with strict scrutiny (and few laws can survive strict scrutiny). That would be ideal, but I don’t think that it’s going to happen. I think the ruling will be more narrow than that, and I’m not sure Roberts and Kavanaugh would agree to it anyway.

But I do expect the Court to start granting cert in more 2A cases. I expect that within a few years, we’ll see mag bans, “assault rifle” bans, and may issue laws go out the window. I’m not optimistic that they’ll shoot down background checks or permits to carry entirely, but I’m hopeful that some of the more egregious infringements will be tossed out.

Think of this case as a sign of things to come. I just hope it’s the first raindrop in a monsoon and not a light drizzle.

“And as much as people complain about the Supreme Court not doing enough for the 2nd Amendment, how is it a good idea to say they can’t do ANYTHING?”

One must understand the political structure created by the constitution; sovereign citizens, elected servants (representatives to the legislative branch) laws passed and negotiated between legislature and executive, executive to execute (not interpret through administrative offices)/prosecute the laws reflecting the “will of the people”. The sovereign people would approve or disapprove of representation through elections.

Another important feature was/is that the judicial branch was not (in the beginning) co-equal. The judicial branch was established by “the people” through their representatives to the Constitutional Convention. Indeed, the constitution prohibits the judicial branch from expanding itself for any reason or purpose. If the size and jurisdiction of your branch of national government is subject to the direction of a different branch, your branch is, de facto, no co-equal with any other branch. This condition was intentional, and subjected to considerable debate. Letters of the founders describe the judicial branch as the weakest (co-equal?) of the three branches. Yet, the founders feared this “weakest” branch to be dangerous should it take upon itself the power to determine what is and is not within the powers of the other two branches.

Article 4 of the Constitution declares: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;…” Note that the constitution further states no power of the judicial branch to determine the law of the land, much less decide to be the “supreme” arbiter of what is/is not within the powers of the legislature. Indeed, founders fretted that should the judiciary arrogate the power to be the supreme arbiter, the nation would be governed not by the citizenry, but by an oligarchy of Supreme and Inferior court judges. In short, the founders decided to not make a black and white, declaratory statement about how the Supreme Court would be permitted or prohibited from becoming a second, but supreme, legislature. Leaving the question, “Who gets to decide when Executive and Legislature come in conflict with each other, and the Constitution?”

The lack of clear permission/prohibition regarding the SC powers was answered by M v. M in 1803, when the Chief Justice of the SC determined that it was he who held the power. The power of the sovereign citizenry to rule themselves was thus fatally impaired. We are living the result.

It’s true that judicial review isn’t mentioned in the Constitution. However, as a structural matter, it’s very clear that it was intended all along.

The whole point of the Constitution is to impose limits on government. Without courts to strike down unconstitutional laws, the Constitution would be utterly powerless to impose these limits. Without judicial review, Congress could pass a bill of attainder, the president could sign it into law, and the subject of that bill would have zero legal recourse.

The idea that the courts were not intended as a coequal branch of government is utterly without merit. Look at the structure of the Constitution, it makes it very clear that they were.

Now, it’s true that the courts have not always lived up to their role, and have let bad laws stand while striking down good ones. This is not a structural problem with the Constitution, it’s a problem of bad judges who have political agendas, or bow down to political pressure from the other branches.

“The whole point of the Constitution is to impose limits on government.”

The whole point of the Constitution was to create a government. If privileges are not explicitly granted government in the Constitution, those privileges are prohibited. What government did was break its chains early on through usurping the power of Judicial Review. Notice how long it took before the Supreme Court used that stolen privilege in any meaningful way? So very much of the unconstitutional expansion of government power has been through the perversion of Judicial Review. IMHO, that is no accident.

“However, as a structural matter, it’s very clear that it was intended all along. ”

Not familiar with any of the founders writings that support that statement. Can you point me in the proper direction?

“The idea that the courts were not intended as a coequal branch of government is utterly without merit.”

Can the judiciary appoint judges, or even reject them? Can the judiciary determine its own jurisdiction? Can the judiciary establish more courts and judges? Can the judiciary impeach judges? Can the SC increase or decrease the number of justices appointed to the SC?

And there is this: “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community.”

“The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two;…” (A. Hamilton, Federalist Paper #78)

No twisting of the language can equate “weakest” with “co-equal”. But, that was then, and we too often project our popular understandings upon the founders.

Yeah. Nothing you have there proves any of your points. Saying that the courts are the weakest branch – as they lack the power of the sword or the purse – doesn’t mean that they aren’t coequal. Surely you’ve also read that Congress is intended to be the most powerful of the branches, but does that also not mean that the executive is a coequal branch of government?

That judges don’t have the right to appoint other judges is, again, irrelevant. If you were trying to argue that the power of the courts is not unlimited and unrestricted, then yeah, it does show that. But Congress cannot appoint new members, nor can the president appoint the next president. You aren’t actually making the argument that you’re trying to make.

Your argument amounts to “the courts do not have unlimited power, therefore they have no power”. This is just bad logic.

The fact remains that a nation of laws requires an arbiter of those laws. That without judicial review, limits on the other two branches would be entirely meaningless. When Congress or the executive overstep their bounds, the court is necessarily there to put a check on their actions. But for judicial review, what would stop them from passing a bill of attainder?

The fact that Article III of the Constitution, which establishes the courts, comes right after the articles establishing the other two branches should also be telling.

Yes, it’s true that the issue never arose before Marbury v. Madison, and that Marbury clarified that yes, the courts do indeed have the power to invalidate unconstitutional laws. But any understanding that doesn’t involve cherry picking a few not-quite-on-topic quotes from the Federalist Papers makes it clear that judicial review was intended, and that without judicial review, the Constitution wouldn’t function.

And again, according to https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about
“The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803). ”
It is NOT a constitutionally granted privilege. It is a rationalized doctrine. There is a huge difference. You either support the Constitution or you don’t. This isn’t any different. If Judicial Review was desired for the Court, a constitutional amendment was the proper course of action. Likewise with exercise of the individual right to keep and bear arms. If government is not going to honor “shall not be infringed” then it ought to amend the Constitution and not use the unconstitutional doctrine of Judicial Review to violate the Constitution.

“Your argument amounts to “the courts do not have unlimited power, therefore they have no power””

You are making stuff up. Never said anything near “SC has no power”s. The powers of the SC are clearly stated in the constitution, and have never been changed/amended. My point is that this whole “co-equal” nonsense is modern, progressive interpretation, taught for about 70 or so years, but not supported by the founders (those who actually said SC is the weakest branch…you can’t twist yourself up enough to logically claim that “weakest” means co-equal”. The three branches are “co-equal” only in the sense that they all have limits to their power, but their powers are not equal. Dependency is never “co-equal”. The best that can rationally be said is all three branches are separate, with their own stated jurisdictions, with Executive and Legislature “co-equal” in that in certain matters one cannot act without the other. Judicial participation in promulgating or ratifying law is nowhere to be found in the constitution. This is the thrust of Federalist 78, like it or not.

“Yes, it’s true that the issue never arose before Marbury v. Madison, and that Marbury clarified that yes, the courts do indeed have the power to invalidate unconstitutional laws. ”

For that to be true, the constitutional declaration that the duly processed laws are the “supreme law of the land” is itself invalid, pointless, and not something the founders would have stated if they intended otherwise. SC can render opinions, but those opinions are not supreme law of the land.

“But any understanding that doesn’t involve cherry picking a few not-quite-on-topic quotes”

The point is that the SC is the weakest branch, with powers inferior to the other two branches. Simply put, SC (or any federal court) has no enforcement power the executive branch does not exercise. Even in local civil courts, opinions are enforced by the police function of the legislature? No? The executive? Yes. The executive branch can ignore an SC ruling? Yes (but no one has had the nerve since Andrew Jackson).

Again, there is no clarity in the constitution that the SC was granted (by Congress), the power to decide which laws are the “supreme law of the land”. Otherwise, M v. M would be a minor footnote is obscure law journals. That case altered the constitution, and was the catalyst for errors since. I see nothing you have written that supports the idea that judicial rule was “clearly intended”.

Reading between the lines is not the hallmark of clarity. Your insistence that somehow divine inspiration (or some other mystical source) clarifies the intent of the constitution has no foundation other than your preference to fill in a blank left by the writers of the constitution. “Someone has to do it” is not a legal principle, but a political one, an emotional appeal that soothes some.

Judicial fiat we labor under is the very thing the founders feared in having a Supreme Court…rule by the unelected. So, we live in the current reality: Congress, for political reasons, allows M v. M to stand. A properly passed law could take judicial review for constitutionality completely out of the hands of the SC.

Show me where, outside the self-serving decision in M v. M, courts are involved in law-making, or law enforcement.

Thanks for the affirmation. I often make feeble attempts to stretch the subject matter beyond comfortable, repetitious sloganeering. Think it is worth understanding where we came from, as a guide to why we are where we are.

One of the basic building blocks of my own philosophic view is that only living things can posses rights. Anything else must be granted privileges, if anything at all. Along those lines, rights, being unalienable to the individual, cannot be given away or sold. One cannot be disposed of them. Rights can only be infringed. Anything a government or the legal fiction of a corporation does must be done under granted privilege. So, the government, not having ever been capable of possessing a right, cannot grant what it does not have. It can only grant privileges as a subset of those granted to it. It cannot grant rights. A constitution could only, at best, grant privileges and not rights.

The idea that the Founding Fathers wanted a court with no power – or whatever euphamism for “no power” you’re using, is belied by literally all of the evidence. You need to research this stuff in an open, non-partisan manner. Because what you seem to be doing is finding an answer you like, and ignoring all evidence to the contrary.

The power of the court is different than the powers of the political branches. Nobody ever claimed otherwise. You read absurdly far into this, and come out with an answer that no reasonable person could possibly reach (and that approximately zero legal scholars would buy).

Your thesis seems largely based on one sentence from the Federalist Papers which you remove from all context to take to a conclusion not intended by anyone. It’s disingenuous.

You still have not addressed my main point – that without judicial review, the Constitution would not function, and that there would be no meaningful check on the political branches.

Furthermore, your understanding of the “progressive” position on the courts is entirely backwards. It ignores the actions and words of left-wing presidents from FDR to Obama, people who sought to weaken the court, which they saw as an impediment to their agendas.

Judicial review is an important check on the powers of government. It is the only means by which our Constitution remains viable. Without it, there would be no recourse for laws passed by Congress and signed by the President that are in blatant violation of the Constitution.

Unlike Britain, we have a written Constitution. In Britain, where judicial review does not exist in the way it does here, their constitution consists of the entire body of laws passed by Parliament. This is why Britain, unlike the US, is able to pass laws banning speech and whatnot – the power of the legislature is essentially unlimited without the check that judicial review provides; laws passed there become part of the “constitution”, and are thus inherently constitutional. The judicial review we have here is a deliberate structural difference between our form of government and the British form.

You mention the Supremacy Clause – that the Constitution is the highest law in the US. For that to be the case implicitly requires judicial review – otherwise, the legislature and executive would be entirely free to disregard it. Yes, it is true that the words “judicial review” are not explicitly mentioned. But without it, the Constitution is mere suggestion at best. If Congress decided to, say, ban the manufacture and sale of firearms, without judicial review, there would be nothing to stop that law from going into effect.

The fact that the courts have no goon squad to enforce their decisions isn’t relevant – the courts are not the only branch of government, and their role is that of an arbiter, not an enforcer. Again, this does not prove whatever silly point you’re trying to make.

I’d suggest taking a closer look at the Constitution itself, as well as the Federalist Papers – the whole thing, not just some non-contextual quotes. Because your argument here seems to come from a deep misunderstanding of those documents.

The goal of the Constitution was to create a government with very strict limits on what it could do. You’re arguing semantics.

Without judicial review, the limits imposed by the Constitution would be utterly meaningless. The very structure of the Constitution requires judicial review to function.

Your problem here seems to be that bad judges have made bad rulings – and I agree, this is a legitimate concern. However, your remedy for this problem is to throw out the baby with the bathwater – bad judges notwithstanding, judicial review is why we still live in a constitutional republic and not some dystopia imagined by Wilson/Roosevelt/Johnson/Obama.

It is true that the Constitution does not explicitly mention judicial review. But it is also rather clear that judicial review is intended – the Supremacy Clause, the specific limits on the powers of Congress and the president, etc. Without the courts to block the implementation of laws that violate the Constitution, there would be no point in putting in these limits in the first place.

The Founding Fathers weren’t just men inventing a new government. They were also men who had just overthrown a government, and as such they were very wary of government power. Judicial review is a check on that power when judges take their roles seriously. Yes, you do get bad judges who take their job as a means of rubber stamping policies that they like (see the ridiculous ruling in Wickard v. Fillburn). But what you’re saying is that because this check on government power doesn’t work as well as it ought to, that it’s somehow wrong. This is not the case.

Think of it this way – if you’re in a gunfight, and you have to choose between an unreliable weapon and no weapon at all, you’ll take the jam-o-matic every time. Because it may not be perfect, but at least it’s something. Judicial review is like a Hi-Point or a Jimenez or something. Yeah, it’s not perfect by any means, and we have far too many Ginsburgs on the bench and not enough Thomases. This isn’t a problem with judicial review, it’s a problem with the state of our political discourse that a Ginsburg can even get appointed to the bench.

If that reply was for me, I stated no seeking of solutions, structural or otherwise. I simply was pointing out the fact that Judicial Review was the result of DOCTRINE created in Marbury v. Madison and not the result of explicitly delegated constitutional power.

“The goal of the Constitution was to create a government with very strict limits on what it could do. You’re arguing semantics.”

No, I am not arguing semantics. Words have meaning. When we want to convey a meaning, we carefully select (ideally) the words that have the best chance of conveying the meaning we intend. You wrote, “The whole point of the Constitution is to impose limits on government. That statement was incorrect and I responded to that fact.

What you’re doing here is willfully misunderstanding and misinterpreting until you come to your desired result.

It’s no different from those who make up various unconstitutional limits to the Second Amendment.

I understand Marbury. I’ve read the ruling more than once, and discussed it in depth. Yes, Marbury established judicial review explicitly. However, it was by no means a novel idea, and it was one that was clearly contemplated and accepted by the drafters of the Constitution. Nobody with any reasonable understanding of the law or the Constitution would tell you otherwise. The fact remains – the Constitution is a document that sets a number of limits on government, and creates a system where the branches of government serve to check each other’s power. Without judicial review, this system would not function.

Based on the structure of the Constitution, judicial review is very clearly required. I’m not sure what it is about this that you aren’t getting. I’m not sure what alternative you think was intended. But for anyone who has studied the Constitution, and studied the law, it is very clear that judicial review is a necessary part of our constitutional order, and that without it, we’d have government without any limits running wild.

I’m not about to copy and paste quotes and links on my cell phone, and quite frankly an Internet debate with a couple of people who are clearly not constitutional scholars isn’t worth busting out my con law books.

Call it “opinion” all you like, but until you can propose an alternative to judicial review that would allow the Constitution to function, your arguments are little more than chaff.

The fact remains, but for judicial review, there would be no mechanism for ensuring that acts of Congress or of the executive stayed within Constitutional boundaries. The Founding Fathers weren’t stupid men, they realized this as well.

Yes, the Constitution created a government. It was also very careful to put strict limits on the power of that government, so as to prevent a tyranny similar to the one that the same people drafting the Constitution had just overthrown.

I was emphasizing the limits that were key to my argument. I’m sure you understood that.

“It was also very careful to put strict limits on the power of that government, so as to prevent a tyranny similar to the one that the same people drafting the Constitution had just overthrown.”

You mean limits like, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”? Judicial Review was not delegated to the United States by the Constitution.

“I was emphasizing the limits that were key to my argument. I’m sure you understood that.”

No, that was not understood. The way I understood your statement was that this government had legitimate unlimited power without the Constitution. That, IMHO, is a completely breach way of viewing the government and its power. The government was designed to have power delegated to it under the Constitution. Thus, the point of the Constitution was to create a government with a limited power. You stated that the “whole point” was to limit power. Again, that implies that this government would have unlimited power without the Constitution whereas I argue that this government would not exist without the Constitution; it would be a different government entirely. IMHO, that’s more than semantics. It speaks of the mindset of the individual making the statement. The government > the People or the People > the government. I believe there is ample evidence that the founders supported the latter.

‘The city made it clear that it wouldn’t even respond to whether its law was constitutional, and would instead only argue that the case was moot. This isn’t the kind of behavior of a government that thinks what it’s doing is legal.”

This is the most common argument of attorneys and judges when one brings up the unconstitutionality of Judicial Review; that it is now rendered moot. It matters not to them that Judicial Review breaks the constraints of the Constitution and set in motion wholesale violation of the founding document. There could be very little effect from activist judges if the Constitution were actually adhered to in matters of Judicial Review. The Constitution never explicitly granted the power for good reason.’

I’ve explained how judicial review is necessary for the Constitution to function. I’ve explained it in plain English. You have made no attempt to rebut me. Instead, you have offered out of context quotes that you don’t seem to actually understand.

Now, your thesis, that judicial review is somehow unconstitutional, which goes against literally every bit of legal scholarship from anyone of any legal philosophy, does not explain this away. You have not been able to explain how, without judicial review, the Constitution, and specifically the limits it sets, would have any practical application.

You also seem to misunderstand the very nature of judicial review – it’s not a power grab, it’s the exact opposite, a limit on power.

So why don’t you put up or shut up? Either explain your alternative mechanism by which the Constitution could be enforced without judicial review.

“I’ve explained how judicial review is necessary for the Constitution to function. I’ve explained it in plain English. You have made no attempt to rebut me. Instead, you have offered out of context quotes that you don’t seem to actually understand.”

You stated an opinion. Where are the facts to back it up?

I never stated that the system would function better without Judicial Review. I stated the fact that it was not a power explicitly granted in the Constitution.

“Now, your thesis, that judicial review is somehow unconstitutional, which goes against literally every bit of legal scholarship from anyone of any legal philosophy, does not explain this away.”

For just one piece of evidence to the unconstitutionality of Judicial Review, I present the Tenth Amendment. The power of Judicial Review was not delegated to the Court in the text of the Constitution.

“You have not been able to explain how, without judicial review, the Constitution, and specifically the limits it sets, would have any practical application.”

I don’t have to explain because I never made the argument.

“You also seem to misunderstand the very nature of judicial review – it’s not a power grab, it’s the exact opposite, a limit on power.”

I stated that it was not a power explicitly granted the Court in the Constitution. The Court granted itself the power by way of rationale in a case. That is a power grab. The Court seized power that it was not delegated.

“So why don’t you put up or shut up? Either explain your alternative mechanism by which the Constitution could be enforced without judicial review.”

“Nonetheless, although judicial review is consistent with several provisions of the Constitution and the argument for its existence may be derived from them, these provisions do not compel the conclusion that the Framers intended judicial review nor that it must exist. It was Chief Justice Marshall’s achievement that, in doubtful circumstances and an awkward position, he carried the day for the device, which, though questioned, has expanded and become solidified at the core of constitutional jurisprudence.”

Because a few out of context quotes and some half-baked legal theories are not that.

On the other hand, “no other answer makes any sense” – the thesis of my argument here – is compelling evidence.

So, I reiterate: without judicial review, the limits imposed by the Constitution would have no mechanism for actually limiting either of the political branches – the legislative and executive branches. If we assume the Founding Fathers didn’t all just gather in Philadelphia to write some document that they had no intention of honoring, if we assume that they intended the Constitution to have real meaning, then judicial review is crucial to the function of the Constitution.

Unless you can rebut that point or propose an alternate mechanism for enforcement, you have nothing to say.

“Unless you can rebut that point or propose an alternate mechanism for enforcement, you have nothing to say.”

I never raised an objection or made agreement to your red herring. We ought to deal with the original argument rather than your attempts at obfuscation. You keep claiming that the the original intent of the founders was that the Court have the power of Judicial Review. Please, post some evidence of this. I would very much like to read it.

I learned a long time ago that if you let attorneys and judges get their egos bruised, they would more often than not step on their own dicks. You’ve been stepping on yours so much, I was beginning to think you have a foot fetish.

Please, you made the claim early on that Judicial Review was a power intended to be granted the Court. You have yet to cite anything. Please, do so. I might change my opinions. However, nobody has adequately backed up that claim for me to date. I beg you to prove that point to me with complete clarity so I don’t have to keep listening to judges and attorneys cry like babies and fling their insults over the matter. I honestly would love to be wrong on this point. It would make my life easier and help me sleep at night.

You could’ve at least started with Federalist No. 80 (?) or so. But what do I know? I’m just a little peasant who ought to just sit back and let papa government do what’s best for me. Don’t ask questions. Don’t rock the boat.

Elitism and dismissing grievances of the people are how revolutions begin, Evan. Do you want ants? Because this is how we get ants.

“If Judicial Review was desired for the Court, a constitutional amendment was the proper course of action.”

Does seem odd, doesn’t it, to conclude that while the founders were careful to list certain jurisdictions for the courts, they left out the most important (today) concept of judicial review regarding constitutionality.

Red herring? Well, there’s another concept you seem not to understand.

You babble about “sitting back and letting government decide what’s best”, meanwhile making an argument that essentially says that government has unlimited power. Speaking of stepping on dicks, your poorly thought out case does more to step on your own dick than any argument I’ve ever heard. It is very literally incoherent.

Nobody is talking about “elitism”. This is about a basic understanding of our system of government. You don’t have to go to law school to understand this. But you seem to have made up some nonsense based on some misunderstood quotes that you’ve taken out of context, a judicial decision that you haven’t read, and some basic failure to understand things like cause and effect.

You aren’t going to start a revolution. So just stop with that nonsense. You have a fringe idea shared by almost nobody, and if you and your small group of revisionist nuts tried to start one, you’d get zero popular support, and then you’d get the media to go on incessantly about “right wing extremists”. So quit being some kind of right wing version of antifa, it just makes everyone else on the right look bad.

And you still haven’t addressed how the Constitution would be at all functional without judicial review.

When I give you compelling evidence for the structural necessity of judicial review – namely, that the Constitution would not be at all enforceable without it – it doesn’t matter that you never argued to the contrary. To make your point, it is necessary to rebut my argument.

The Tenth Amendment has nothing to do with this.

Again, you’re relying entirely on misinterpretation and non-contextual quotes to attempt to prove something while ignoring the largest factor here, which is structural soundness.

So, quit disseminating, quit distracting. Either explain how the Constitution would be structurally viable without judicial review, or just shut up, because you very plainly have no idea what you’re talking about.

“Powers” is the actual term used in the constituiton (see ammendments 9 and 10). In the vernacular, “powers” and “rights” were used interchangeably. Since people have rights, and grant government certain powers over those rights, one could argue that “rights” are expressed as “powers”, but both mean the same thing. But the idea of granting “privileges” to government really focuses the mind on the real relationship between rights of people, and delegations of controls to government.

Stop it already. No one is posing that the SC has no power. The constitution lists those powers (consider them jurisdictions, or turf). This “no power” stuff is just blather. But, do note that in listing judicial posers, the founders chose not to identify what you consider to be the only power – judicial review.

In case you are completely unaware, neither the SC nor the lower courts can prevent congress from passing, and the president from signing a law that violates one or more provisions of the constitution. So much for “judicial power”, eh? Further, should it develop that no one brings an action to the judiciary regarding such constitutional violation, the courts are absolutely powerless to do anything about it. Only congress can “pass laws”, but the president can derail through the use of veto. This is the first check against what you see as an unworkable constitution. Congress can then override the president with sufficient agreement among the super majority of the peoples’ representatives. And there a law sits until the courts are invited via a lawsuit by someone directly affected by the law. This is the second check of power provided by the constitution.

Your idea that the constitution is unworkable unless reason, not the constitution, is applied allowing the courts to review the law. This is merely the same line of logic (“someone’s gotta do it”) that results in “reasonable restrictions” on the Second Amendment. After all, it only makes sense that when faced with a constitution that does not grant, or rather prohibits, government intrusion, “reason” must be applied where the constitution is clear. As to judicial review, the constitution is clear which powers (privileges), or jurisdictions are granted the courts. For some reason, the founders did not see fit to address the constitutional conflict of the president refusing to enforce a congressionally passed law, and subsequently told the SC to pound sand with their judicial review. I find it interesting that the nation survived the first 12 years without crumbling.

Like it or not, the quote from the Federalist 78 is important because Hamilton was addressing a major issue of resistance to ratification of the new constitution – fear that the courts would run roughshod over the representatives of the people. Such fear was not trifling. Without assurance the courts would be held in check from becoming an imperial ruler over the people, the constitution would have failed.

No, the courts can’t prevent a law from being passed. They can, however, prevent it from from going into effect, with injunctions, and they can strike it down entirely as unconstitutional.

This is the method by which we assure that the Constitution is more than just a suggestion.

Yes, the legislative and executive branches act as checks on each other. And the court acts as a check on both of these branches. And the fact that judges are appointed by the President and confirmed by the Senate, and that Congress has the power to impeach judges, serves as a check on the courts. This is vital to how our system of government functions. It prevents government power from being too centralized in any single branch of government.

Your quote from the Federalist Papers is entirely irrelevant to the question of judicial review. The fact remains that without judicial review, there is literally nothing preventing a Congress and president from ignoring the Constitution entirely. You don’t seem to have a counter to this point.

I don’t think that the court is going to fall for this. They already slapped down the first attempt by NY to moot this case. I think it’s as clear to them as it is to us here what NY is trying to do, and I think that the justices realize that they’re being too clever by half, and aren’t going to buy it.

This is a very obvious case, and I wouldn’t be all that surprised to see one or two of the leftist justices, likely Kagan or Breyer, join the majority in shooting this law down. And I can’t wait to read Thomas’ concurring opinion – I doubt that Roberts, Kavanaugh, and possibly Alito will be willing to go as far as Thomas does, and I expect that Thomas will write a biting concurrence excoriating the court for not treating the Second Amendment with the respect it deserves, likely joined by Gorsuch and possibly Alito.

My problem is not bad judges. OUR problem is bad judges. Which is precisely why the founders wanted the judicial to be the “weakest” branch. They set the boundaries within the constitution. Judicial review was admitted by the SC to be made-up, not a power specifically delegated. See amendments 9 and 10 about who holds power not specifically delegated (as to exclude speculation of “intent”) to the government (of which the SC is a member).

I cannot find any justification for judicial rule in the constitution, or the notes of the Convention. You are working from established fact, and proclaiming that it is logical to have judicial rule. You have been pointed to the constitution itself, and the published declarations of one of the writers of the constitution, highlighting the fact that judicial review was not included in the constitution, and why the judicial was considered dangerous without tight constraint. So fay, other than “someone’s gotta do it”, you are leaning on speculation based on reverse engineering: if it is so today, it must have been intended in the original. Once again, the powers, jurisdiction of the courts was laid out in detail, with not even a hint of “common sense” that delegated judicial review to the courts.

Would the nation have survived much longer without judicial review? Impossible to determine. Did the nation survive M v. M? No. Since then, all sorts of court-proclaimed jurisdiction and activism resulted in political laziness. It is much easier to just accept judicial rule than it is to fulfill the responsibilities of elected representatives. The entire judicial history since M v. M has been one of more and more power consolidated in a tiny group of unelected officials, accountable to no one. All in the name of not letting the constitution stand in the way of “doing the right thing”.

The remedy for lack of precise delegation of judicial rule in the constitution was/is to amend the constitution, not just allow inertia to set in. But, following the constitution is hard work, and might cost votes. If your claim that it is imperative a judicial review system be established to ensure the constitution can work, you should be looking at the constitution for the remedy to adjust what the founders gave us. To cling to the idea that something outside the constitution is the answer is the same thinking as all those before you who thought the constitution inadequate to the urgent need of the moment….like common sense gun control. We don’t get to claim that our exceptions to the constitution are righteous, but those we oppose have no basis for their claims.

But what is the point to this discussion? To acknowledge the fault lines, and admit we are sometimes just as erratic in our thinking as those who would destroy the nation are. We all have feet of clay. To deny it is just intellectual dishonesty.

“that was clearly contemplated and accepted by the drafters of the Constitution.”

Still waiting for references supporting your statement. Especially references explaining how it was the founders intended judicial rule to exist (a fact not supported by the Marbury ruling), but failed to include it in the constitution itself.

“I’m not about to copy and paste quotes and links on my cell phone, and quite frankly an Internet debate with a couple of people who are clearly not constitutional scholars isn’t worth busting out my con law books.”

This is a fairly simple case with absolutely zero far reaching consequences. Roberts will write a 7/2 narrowly tailored opinion, and Thomas will write a scathing rebuke that concurs on the finding but excoriates the court for treating the 2nd as a 2nd class right.

There is no giant expansive finding here. Not with Roberts on the court.

If not judicial review, then what? How did the Founders expect for the Constitution to have any weight whatsoever? What is there but judicial review from stopping Congress and the president from passing bills of attainder, ex post facto laws, limits on speech/religion, etc? It is true that judicial review is not mentioned outright in the Constitution. It is also true that it is heavily implied to the point that without it, the Constitution does not function.

There is a reason that the courts confirmed judicial review at the first opportunity they had, and that virtually no legal scholars have ever seriously questioned it.

Yes, it is a problem that we have bad judges. But you’re looking in the wrong direction here. Most of the problems with bad judges stem from the so called “progressive era” (along with income tax, direct election of senators, prohibition, the NFA, and virtually everything else wrong with the country today). When the “progressives” dropped the doctrine of constitutional originalism in favor of the theory of the “living, breathing Constitution”, and appointed enough judges who bought such nonsense, they weakened judicial review as a check on government power. Since about the 1930s, there have only been three originalist justices confirmed to the Supreme Court – Scalia, Thomas, and Gorsuch.

This is a problem that needs to be fixed. It doesn’t mean that the ability of the courts to check the excess of government should be done away with entirely.

Barack Obama tried to question judicial review when the court shot down one of his grossly unconstitutional schemes (I don’t remember which one). Franklin Roosevelt had a problem with judicial review to the point of threatening to pack the courts – a threat that the extreme left is dusting off again. Critics of judicial review come almost entirely from people like them, who see the court as an impediment to their power grabs. This in and of itself is an excellent argument in favor of judicial review, and goes to show that, though imperfect, it still works. And it also goes to show how important judicial review is to maintaining anything approaching Constitutional order.

The residents who migrate to other states and are still okay with that nonsense do so for other reasons – mainly taxes and scenery.

I’m from New York. I migrated to another state in large part because of this gun control nonsense. Now they’re trying to bring it to my adopted state, and I’m as determined to fight for my rights as anyone.